The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.

OTTAWA — Canada's privacy commissioner is taking Air Canada to court to compel the airline to release records involving a so-called "unruly" customer, arguing passengers should be able to know the information air carriers are collecting about them.

In a newly filed affidavit, a senior official with the Office of the Privacy Commissioner of Canada sets out why the dispute has broad implications for air travellers. The document bolsters an application in Federal Court for an order requiring Air Canada to hand over the disputed documents about an incident on board a flight from Kamloops and Vancouver and to confirm the commissioner's right to ask for evidence in support of a claim of solicitor-client privilege.

"The ability to obtain access to one's personal information and to challenge its accuracy is a critically important means of holding an organization accountable for its personal information practices," according to Carman Baggaley, senior policy and research analyst at the commission.

The legal battle is heating up just as new regulations are "being finalized" by Transport Canada to "enhance the ability of air operators, private operators and their employees to deal with the growing problem of aviation passengers who are unruly and disruptive," the affidavit states.

This new system will "require air carriers to prepare reports on certain types of disruptive behaviour, to make these reports available to the Minister upon request and to provided statistics to the Minister on these incidents."

The backdrop of these coming changes are the rules governing Canada's "no-fly" list, which make it difficult for people to know why they are on the list and denied access to air travel, the affidavit states.

"In the current environment of heightened concerns about aviation security, information collected by air carriers about passengers can have a significant impact on individual travellers.

"In some cases, an air carrier may be required... to deny boarding to an individual who is on a Canadian or foreign no-fly list. Or, in some cases, an individual may experience delays or difficulties boarding a flight. In addition, a Canadian air carrier can deny boarding to individuals based on the carrier's assessment that an individual may pose a risk to a flight. This authority will be enhanced with the adoption of the (new) regulations."

In this context, the privacy commission is arguing the right of passengers to access information about themselves is "critically important," especially in cases where they seek to correct the record.

"Given the confusion that may exist about why an individual has been denied boarding or is experiencing difficulties when trying to obtain a boarding pass, being able to obtain access to his or her personal information held by a carrier may help an individual understand why he or she is encountering problems, or in some cases, allow individuals to clear up any confusion, misunderstandings or incorrect information before boarding is denied," according to the affidavit.

In this specific case, Juergen Dankwort of Vancouver complained to the privacy commission after Air Canada refused to provide him copies of reports related to an incident involving him during a short-haul flight in May 2005; the airline argued the files were protected under solicitor-client privilege.

Air Canada cited solicitor-client privilege again when the commission's investigative unit requested the reports as part of its investigation into whether Air Canada contravened the Personal Information Protection and Electronic Documents Act when it denied the passenger access to his personal information contained in these reports.

Air Canada also refused to provide the commission a sworn affidavit outlining why the disputed documents are, in fact, privileged, according to court documents.

In correspondence filed in federal court, Air Canada says the commission "has no right to compel such evidence protected by law, and has no jurisdiction to assert whether or not (the) documents are solicitor-client privileged."

Air Canada declined to comment on the case because the matter is before the courts.

In an interview, Dankwort, a retired sociology instructor from Kwantlen Polytechnic University, says he's "concerned" and "frightened" by Air Canada's refusal to provide an explanation to the privacy commissioner.

"If Air Canada is saying that (the reports) are protected by solicitor-client privilege, they need to let our own appointed authority know on what basis they were making that claim, rather than using it as a carte-blanche response to any inquiry or request for any such reports."

Dankwort added this matter is particularly important in a post-9/11 world because airlines hold a lot of discretionary power over who can fly.

"I think any information that a corporation has on a consumer or a client, I think we, the public, have the right to know what's in the file, what's on record. One of the hallmarks of democracy is that we have access to this kind of information."

In a statement, a spokeswoman for the privacy commissioner's office said that while it recognizes the importance of solicitor-client privilege as a fundamental legal principle, the office also thinks it's important to test the claims of organizations that withhold information on that basis.

The incident arose after Dankwort and his travelling companion brought their own beer on board, not knowing this contravened the aeronautics act, according to correspondence filed with the court in which Dankwort alleges the fight attendant was rude and aggressive and his demeanour was "completely unwarranted, inappropriate and disturbing."

During the flight, the captain advised the RCMP that Dankwort was being unruly. He was detained at the end of the flight while the police investigated the allegations. Dankwort was released a few hours later, and no charges were laid.

Please note that I am only able to provide legal advice to clients of my firm. If you have a privacy matter, please contact me about becoming a client. I am not able to provide free legal advice. Any unsolicited information sent to David Fraser may not be protected by solicitor-client privilege.

The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Due to professional ethics, the author may not be able to comment on matters in which a client has an interest. Nothing herein should be used as a substitute for the advice of competent counsel.

This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.